May 4, 2010

Two things Judge Barbara Crabb never said

1. The National Day of Prayer is unconstitutional
2. The National Day of Prayer is an establishment of religion

Can we at least keep this much straight? That would be good.

Yet Kevin Petersen, Wisconsin's 40th Assembly District Republican, begs to differ in this ill-informed opinion piece.*

Petersen makes much of various presidents praying, or calling for prayer. But none of them were or are Congress, and none of them made a law (in fact they can't). So they have nothing to do with the question presented to Judge Crabb, which was "whether the statute creating the 'National Day of Prayer,' 36 U.S.C. § 119, violates the establishment clause of the United States Constitution."

36 U.S.C. § 119 is a law. A law that Congress made. Not the National Day of Prayer. And not even the fact that some presidents were inclined to proclaim it (to execute it, in constitutional parlance).

Moreover, not only did Judge Crabb not rule against any of the presidential proclamations Kevin Petersen presents, she specifically decided that the plaintiff in this case, the Freedom From Religion Foundation, did not even have legal standing to challenge them.

Petersen's strangest claim is this one:
The first Congress prayed for wisdom when forming our Constitution.
It was the Constitution (itself formed by a convention of delegates which didn't pray) that formed Congress, not the other way around.

Petersen goes on to discuss the Establishment Clause case law:
In the 1947 Everson v. Board of Education decision, the U.S. Supreme Court expanded the federal power over States and their citizens by requiring all States and governmental bodies stay neutral on the issue of religion.
Everson did nothing of the sort. As its majority expressly notes,** the First Amendment was already a restriction against the States, made so through the Fourteenth Amendment: "No State shall ... deprive any person of life, liberty, or property, without due process of law." Therefore Everson was no expansion of federal power.

Everson does not say that all States have to remain neutral "on the issue of religion." It says an individual State must stay neutral in its relations "with groups of religious believers and nonbelievers."

A very, very different thing, and it's hard to see how it's a bad one, let alone in non-conformance with fundamental constitutional precepts, which at least imply the contentious Jeffersonian characterization, separation between church and (small-s) state.

Indeed, the Everson Court ultimately rejected the complainants' challenge, on Establishment Clause grounds, against a New Jersey law that allowed the reimbursement of parents of Catholic students for transportation costs getting to and from their Catholic schools.

(Authored by Justice Hugo Black, incidentally, a former member of the second Ku Klux Klan, no great admirers of the Romish papacy.)

More Wisconsin Assemblyman Petersen, who is himself empowered with making law if not reading it, in reference to a 1985 decision of the Supreme Court, Wallace v. Jaffree:
Alabama law allowed teachers to have a moment of silence at the beginning of class. Wallace v. Jaffree deemed the law an "establishment of religion" thereby rendering it unconstitutional.
No, it did not deem the law an establishment of religion:
[T]he narrow question for decision is whether [the Alabama law], which authorizes a period of silence for 'meditation or voluntary prayer,' is a law respecting the establishment of religion within the meaning of the First Amendment.
Emphasis added.

By all means, disagree with the Court's holding, and maybe even show your work. But it helps to accurately describe what that holding was, within the context of the actual language of the Constitution.

The First Amendment clearly prohibits more than governmental establishments of religion. Why do conservative Republicans, on the one hand claiming faithful adherence to the "plain language" of the Constitution, on the other so willfully ignore the word, "respecting"?

Conservative Republicans continuously wish to grouse about the "activist" courts reading language into the Constitution that doesn't literally exist, e.g., the "right to privacy." Meanwhile they're on much shakier ground when they deliberately excise language that does.

* In all fairness — if that's the correct word — Kevin Petersen mirrors just about everyone else who's rattled a keyboard and slapped 'ENTER' in the aftermath of Judge Crabb's decision (.pdf; 66 pgs.) last month.

** "The First Amendment, as made applicable to the [S]tates by the Fourteenth, Murdock v. Pennsylvania, 319 U.S. 105 ..." Everson v. Board of Education was simply taking direction from precedent.

3 comments:

John Foust said...

Those defending the First Amendment are often threatened with being shot by those defending the Second.

"Sumo magis glandes!" says the choir director.

Rick Brown said...

Your opening comments about what Judge Crabb never said brings in question everything you have said. Please read the following from the official publication regarding this matter.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
FREEDOM FROM RELIGION FOUNDATION, INC.,
ANNE NICOL GAYLOR, ANNIE LAURIE GAYLOR,
DAN BARKER, PAUL GAYLOR, PHYLLIS ROSE
and JILL DEAN, OPINION and ORDER
Plaintiffs,
08-cv-588-bbc
v.
President BARACK OBAMA and
White House Press Secretary ROBERT L. GIBBS,
Defendants.

Entered this 15th day of April, 2010.
BY THE COURT:
/s/
BARBARA B. CRABB
District Judge


Page 64
"Although the law does not always point in the same direction on matters related to the
establishment clause, my review of that law requires a conclusion that 36 U.S.C. § 119 is
unconstitutional."

Page 65

2. It is DECLARED that 36 U.S.C. § 119 violates the establishment clause of the
First Amendment to the United States Constitution.

Fair to say, I think, that she has gone on record stating that it violates the constitution and that it is in her opinion unconstitutional.

illusory tenant said...

The statute, yes. That's what I said.